San Francisco judge throws out Internet libel suit

A San Francisco Superior Court judge dismissed a $5,000 libel award this week against a woman who called an Internet business consultant a “liar” during an online chat.

Judge Winton McKibbons' decision reverses a small claims court ruling in favor of Kenneth McCarthy. The freelance journalist argued that his reputation in cyberspace would be damaged by the “slanderous” personal attack.

Stacey E. McCahan, a recruiting coordinator at the accounting consultant firm Arthur Andersen in San Francisco, sent the message: “Ken McCarthy is a liar — be warned” after the two bicyclists had an argument.

McCarthy was investigating the city's Critical Mass bicycle protests, which ended with more than one hundred bikers getting arrested during a ride last July. He contacted McCahan, one of the more visible members of the group, for information.

McCahan said: “I had every right to say what I said, and for someone to sue someone else because they don't like what they say is very frightening.”

McCahan's transmission, sent to hundreds of “sf-critical-mass” listserv members, amounted to negligence, a municipal court ruled in February.

“When I lost the first case I was stunned and shocked at such an irrational decision,” she said. “Now, I'm relieved and happy because important issues were involved other than my individual case. I think the judge took that into consideration.”

McCahan's attorney, Karl Olson, said: “It's a nice victory. A small step forward for the First Amendment.”

The message was simply McCahan's opinion and “flame wars” — or heated exchanges — are customary on the World Wide Web, Olson had argued.

“It involved a relatively small amount of money but some very large principles,” said Olson, a First Amendment attorney. “I would hope that it would give people who are engaging in speech a little bit more comfort, and people who are thinking about filing lawsuits a little bit more caution. …The remedy for insults, or speech you don't like, is counter speech; it doesn't lie in the courts or the legislature either.”

McKibbons, who gave no explanation for his ruling, ordered McCarthy to pay $221 in attorneys fees and costs. McCarthy represented himself.

There will be no appeal, Olson explained, because neither party can appeal the Superior Court ruling since the case came from a small claims court.

[In a statement later, McCarthy said McCahan was actually working for the office of the San Francisco mayor, and that the case was not a First Amendment or free-speech issue.

“I was, at the time,
investigating misconduct by [the mayor's] office, including, but not
limited to, the use of police violence against participants
in an event Ms. McCahan was actively involved in undermining,” McCarthy said.

“There was no argument or 'flame war' preceding Ms. McCahan's
attacks on me. Her postings were calculated to, and indeed had the
effect of, discouraging witnesses from coming forward. Someone
also took pains to submit these postings to the major search
engines to insure they were displayed prominently when my
name was searched on the Internet,” said McCarthy.

“Attorney Karl Olson did not present a 'First Amendment'
defense as he claimed to reporters. He: 1) pointed out
to the judge that I was a “muckraker” involved in
tarnishing the reputation of law enforcement and local
politicians, and 2) claimed that I, by virtue of the fact that
I used the Internet, had forfeited my rights to protection
against libel and defamation as a private person. This meant
that as a public person I not only had to prove the offense,
but also had to prove calculated malice with intent to
cause injury, an evidentiary mountain (that) I, representing myself,
was not able to climb,” McCarthy said.

For more information about this case, see this site.]

Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, said it's too soon to label Internet libel suits a trend.

“There are remarkably few of these cases partly because in most of the online libel situations deep pockets are not involved,” O'Neil said.

“People who use these communication systems such as a newsroom or chat group should come to understand that they're communicating to wide, extensive and diverse audience.”

Differences between Internet libel and print libel center around “procedure, rather than substance,” O'Neil said. “The basic standards of liability are the same as far as substance (goes); however, there are fascinating questions involving jurisdiction over a Web site and its venue, as opposed to a newspaper, for example, which circulates physically.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.